Banga v. Kanios

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 NAVJEET SINGH BANGA, 10 Case No. 16-cv-04270-RS Plaintiff, 11 v. ORDER ON MOTIONS IN LIMINE 12 CHRIS GUS KANIOS, et al., 13 Defendants. 14

15 16 Both parties in this case have filed and fully briefed pretrial motions in limine (“MIL”). 17 For the reasons discussed below, Plaintiff’s MIL No. 13 is denied, Defendants’ MIL No. 1 is 18 denied, and Defendants’ MIL No. 2 is granted. 19 I. PLAINTIFF’S MOTION IN LIMINE 20 Plaintiff’s MIL No. 131 seeks to limit or preclude testimony of Defendants’ witnesses at 21 trial that is “outside of their percipient knowledge, and improperly verges on expert testimony.” 22 Dkt. 479, at 1. Besides being filed late, the MIL is non-specific as to what testimony from each 23 witness it specifically seeks to exclude. Plaintiff relies heavily, but incorrectly, on Rule 702’s 24 reference to “specialized knowledge” as falling within the realm of expert testimony. However, 25 the Rule does not apply simply because a witness seeks to testify regarding his or her specific 26

27 1 The MIL is styled as No. 13, rather than No. 1, because Plaintiff elected to continue numbering 1 knowledge — for instance, testimony about a particular organizational policy of which the witness 2 is familiar. A lay witness’s testimony that is “based on personal knowledge gained through 3 employment . . . and common sense” is, in other words, typically not “specialized technical expert 4 knowledge” requiring an expert designation. Gray v. Golden Gate Nat’l Recreation Area, No. C 5 08-00722-EDL, 2013 WL 12386845, at *22 n.8 (N.D. Cal. Feb. 20, 2013); see, e.g., NeSmith v. 6 Cnty. of San Diego, No. 15-CV-629 JLS (AGS), 2022 WL 272011, at *17 (S.D. Cal. Jan. 28, 7 2022). The MIL is therefore denied, without prejudice. Should the Defendants’ witnesses offer 8 expert testimony or improper legal conclusions at trial, Plaintiff may challenge them at that time. 9 II. DEFENDANTS’ MOTIONS IN LIMINE 10 A. Motion In Limine No. 1 to Bifurcate the Issue of Punitive Damages 11 Defendants’ MIL No. 1, seeking to bifurcate the issue of punitive damages into a separate 12 trial phase, largely repeats the arguments that were previously raised and rejected. See Dkt. 428, at 13 6; Dkt. 393. Seeing no good cause to depart from that prior ruling, the motion is denied. 14 B. Motion In Limine No. 2 to Exclude Plaintiff’s Expert Witness 15 Defendants’ MIL No. 2 argues that Plaintiff’s expert witness, Dr. Sidney Blum, must be 16 excluded because he lacks qualification as an expert on the subjects his report embraces, bases his 17 opinions on unreliable data and speculation, and further because his testimony will fail to assist 18 the jury. Defendants previously moved in limine to exclude Dr. Blum’s testimony, and the order 19 noted not only that Dr. Blum “cannot be considered an expert” under Rule 702, but further that 20 “[o]n this record, it appears questionable that Blum is in a position to provide admissible expert 21 testimony on the issues identified.” Dkt. 428, at 6–7. 22 Plaintiff has offered no compelling reasons why Dr. Blum should be permitted to testify as 23 an expert witness. Many (if not most) of Dr. Blum’s conclusions are rooted in unreliable data, 24 such as outdated articles, vague statistics, and unreasonable comparisons to other law schools. The 25 lost earnings calculations rely on a series of inferential leaps that are unduly speculative. Further, 26 Dr. Blum, while no doubt a qualified and experienced accountant, does not have the training as a 27 vocational expert to opine on topics including entry into, and earnings within, the legal job market, 1 nor does he evince his qualifications to state legal conclusions as to Plaintiff's disability or 2 || Defendants’ allegedly wrongful conduct. All of this reaffirms the prior conclusion that Dr. Blum 3 has not been qualified as an expert witness under Rule 702, and it demonstrates that his testimony 4 || would not assist the jury and could cause unfair prejudice to Defendants. The motion is therefore 5 granted, and Plaintiff is precluded from relying on Dr. Blum’s testimony or expert report.” 6 In addition, and more broadly, the damages theory advanced in Dr. Blum’s report as 7 presently constituted appears to be too speculative to be admitted into evidence. Courts will not 8 || award damages where the evidence is “too speculative to establish with reasonable certainty that 9 || [the plaintiff] would incur such expenses.” Sandoval v. St. Johns Reg’l Med. Ctr., 380 Fed. App’x 10 620, 621 (9th Cir. 2010) (mem.). Here, there is no basis simply to assume that Plaintiff would 11 have succeeded in law school, passed the (notoriously difficult) California Bar Exam, and then «12 || proceeded to obtain a job as an attorney. This is not a reflection on Plaintiff's particular effort,

13 aptitude, or initiative; there is simply no way to know whether this hypothetical sequence of

v 14 || events would have played out. Thus, in addition to Dr. Blum’s report, similar evidence and © 15 testimony regarding damages likely will need to be excluded. 16

= 17 || ITISSO ORDERED.

Z 18 19 || Dated: January 24, 2023 MAA 20 RICHARD SEEBORG Chief United States District Judge 22 23 | ae ee Plaintiff, in a supplemental brief filed after the pretrial conference, argues that Dr. Blum could 24 still be allowed to testify on Plaintiff’s lost compensation as a substitute teacher and the number of hours Plaintiff spent in class. See Dkt. 482, at 2-3. While this testimony may be relevant to 5 Plaintiff’s case, it is unclear why it would need to be the subject of expert testimony: Dr. Blum’s basis for calculating Plaintiffs compensation as a substitute teacher, for instance, appears to be 26 || based simply (and only) on Plaintiff's paystubs. See Dkt. 466-3, at 40. Thus, expert testimony on these matters does not appear necessary to “help the trier of fact to understand the evidence or to 27 determine a fact in issue.” Fed. R. Evid. 702(a). 28 ORDER ON MOTIONS IN LIMINE CASE No. 16-cv-04270-RS